A reader writes:
Does it matter if the writers of the Constitution/Amendment define or understood the word "life" in "…right to life…" to mean from the moment of conception? That seems pretty likely to me, though I haven’t done any research. In such a case a Catholic (or merely "good") judge would be required to protect life from the moment of conception. I don’t think we *have* to play by their rules.
Perhaps in a generation we may have judges who will interpret the constitution in that way?
Perhaps, but it’s not a given that originalist judges would read the Constitution in this way.
While it’s true that the Fifth Amendment to the U. S. Constitution provides that no one shall "be
deprived of life, liberty, or property, without due process of
law," it is not a slam dunk that the framers or ratifiers of the amendment would have understood life as beginning at conception.
There was still a lot of overhang from the time when bad embryology thought that children were not alive until "quickening" (lit, "making alive" but interpreted as when the mother first feels the baby kick) or Aristotle’s 40/80 day business.
As a result, when the amendment was passed (1791) abortion was generally legal in the United States.
It wasn’t until the mid-1800s when better embryology revealed that children were definitively alive from conception, and American physicians began lobbying their state legislatures to make abortion illegal. That happened in every state of the union and stayed that way until the late 20th century, when certain legislatures began to loosen the requirements, just before The Evil Decision (1973) swept away all regulations and inaugurated an age of triumphal babykilling.
Since abortion was generally legal at the time of the Fifth Amendment’s passage and remained so–uncontested–for many years thereafter, an originalist justice might well look at it and say, "Well, that shows that the framers/ratifiers did not undrstand this amendment to prohibit abortion. Therefore it doesn’t. On the other hand, neither does the Constitution provide a right to abortion. It’s a matter for the legislatures, as it was at all times before Roe v. Wade, so you need a legislative solution if you want abortion banned."
Which is the most likely scenario for how abortion will be ended in this country: A judicial overturning of Roe on originalist grounds, followed by a long, bloody legislative fight to end abortion state-by-state, hopefully (a long way down the road, after the battle is mostly won) eventually resulting in a constitutional amendment protecting life from conception to patch up what the Fifth Amendment doesn’t do on an originalist reading.
That being said, it’s possible that an originalist with a sufficiently strong natural law orientation might look at the Fifth Amendment and say, "Okay. They didn’t understand it as prohibiting abortion, but that was because of the defective understanding of science they had in their day. They meant to protect the life of every human being under U.S. jurisdiction, and now we have a clearer undrstanding of the fact that the unborn are human beings. Therefore, the Fifth Amendment protects them."
That’s possible, but such five such justices aren’t likely to concurrently sit on the Court any time soon. The former reading is more likely to get Roe overturned in the short term.
I would think that the simplist solution would be for the federal government to DEFIND what life is. A simple majority vote. “We declare that the Federal Government of these United States recognizes that life begins at conception and that said life is entitled to the full rights and protections of the Constitution and laws herein.”
Pretty simple. A betters solution would be the same in a Consitutional admendment.
This MAY be even accomplished by Executive Order.
How about a constitutional definition of “person” as “every individual of human specie”?. Since the embrio is an individual biologically diferent from the mother since conception, this would mean an end to abortion without mentioning it.
“As a result, when the amendment was passed (1791) abortion was generally legal in the United States.”
I’m not so sure about that. There were no statute laws against it, but I think it was forbidden by common law. The books I have that might answer that question are home and I’m at work, but maybe others reading this have the information at hand.
On Wednesday’s Al Kreska show they had a judge that argued the the 14th amendment overcomes these ‘deficiencies’ Some years prior to the adoptions of the 14th Amendment the AMA had concluded that at the time of fertilization the life of the human person begins. It was at that time that many abortion laws were enacted.
Also at about this time there were state supreme courts cases that effectively ruled that the human life begins at conception and that person enjoys the same rights as those who are born (one case involved inheritance of a child whose father dies shortly after conception)
So the premise is the the 14th Amendment came about in this environment and with the understanding of the rights of the unborn human person.
Oxford law prof John Finnis has written a bit about abortion cases in British common law, which might be of interest to folks here.
Abortion was sort of legal in 1791? I have a book written in 1916 by a advocate of contraception, Dr. Robinson , in which he writes that Abortion has always been deemed one of the most horrific and brutal crimes a human could committ. I find it hard to see how this doctor who practiced in the 1800’s, in America, and favored contraception, and writes all people
find abortion the most horrible crime possible, in other words a leading liberal voice, would,
reconcile it was sort of legal in 1791.
If there were illegal abortions in 1791, it was likely on the order of very few.
The population was under 2,000,000 in the entire country.
Given the very limited number of doctors who would perform such abortions and the rudimentary instruments , abortion was often a death sentence.
Abortion was a rare event in 1791, and remained so 100 years later, even with improved medical options.
I have a book written in 1916 by a advocate of contraception, Dr. Robinson , in which he writes that Abortion has always been deemed one of the most horrific and brutal crimes a human could commit. I find it hard to see how this doctor who practiced in the 1800’s, in America, and favored contraception, and writes all people
find abortion the most horrible crime possible, in other words a leading liberal voice, would,
reconcile it was sort of legal in 1791.
Abortion and abortifacients (e.g. the patent medicines of Restell) were actually very common in 19th century America, though not in numbers comparable to today. Consider the following passages from early American suffragists (who, without known exception, opposed abortion):
“Child murderers practice their profession without let or hindrance, and open infant butcheries unquestioned…Is there no remedy for all this ante-natal child murder?…Perhaps there will come a time when…an unmarried mother will not be despised because of her motherhood…and when the right of the unborn to be born will not be denied or interfered with.”
Sarah Norton, Woodhull’s and Claffin’s Weekly, November 19, 1870
“Dr. Oaks made the remark that, according to the best estimate he could make, there were four hundred murders annually produced by abortion in that county [Androscoggin County, Maine] alone. The statement is made in all possible seriousness, before a meeting of ‘regular’ practitioners in the county, and from the statistics which were as freely exposed to one member of the medical fraternity as another. There must be a remedy for such a crying evil as this.” Elizabeth Cady Stanton, “Child Murder” in The Revolution, March 12, 1868
Though they disagreed about abortion’s root causes, suffragists worked together with the media and the medical profession to have laws against abortion passed.
Back to the constitutional issue, on what basis would an originalist justice conclude that the 5th or 14th amendments prohibit abortions performed by private parties? Even if the word “life” in the 5th includes fetal life in the womb, the Consitution only defines the powers of the government. So, the government would be prohibited from killing a unborn child without due process of law, but why would a private doctor be prevented from doing so? It would take a separate legislative act (a statute) to prohibit that sort of private action. Murder by a private party doesn’t violate the constitution, it violates common law and statute.
The Judge interviewed on Al Kresta’s show this week was, Robert C. Cetrulo, who wrote a book called “Reflections of a Pro-Life Warrior.” I haven’t read the book – and I’m sure I have an imperfect memory of the discussion but I do recall that he stressed the need to define the unborn child as having alive, literally having a “life” and for that matter a “liberty” worthy of protection.
The law has been very slow to incorporate the obvious reality that there is human life before the moment of birth — and the ramifications go beyond abortion. There is a trend now toward recognizing life before birth when the unborn child is injured or killed due to negligence or criminality. We saw recently with the murder of Lacie Peterson and her unborn child. But, it is even difficult to get laws passed to protect the unborn (even a 8 month baby) from murder because the proponents of abortion know that you can’t recognize pre-born life for one purpose and not for another. They would rather live with the legal fallacy that the there is no life worth protecting until the child is born.
I agree that what we really need is constitutional amendment — and we are not likely to get that anytime soon. Overturning Roe v Wade will open the doors for states to regulate abortion — theoretically they already have the authority to do so, but the exception for the life and health of the mother defined in Roe and its successors is big enough to drive a truck through. Overturning Roe v Wade is just the first step — it’s an important step and should greatly reduce the number of abortions, but ultimately the only solution is the end to the legal fiction that life begins at birth.
The Roe v Wade ruling so many pro life people wait for will never happen.
A society that honors the homosexual as the ideal citizen, and mocks the laws of God at every turn including wilful killing of innocents is a society on the cusp of anarchy.
We do know that pre-quickening abortions were not crimes in colonial times.
We know this because women tried to bring suit for slander, and had their cases dismissed because even if the charge was false, it was not a crime and failed of the requirements for a case of slander.
ALthough I understand Catholictheologian’s position, I think we can get Roe overturned. Simply put, it is BAD constitutional law and even the most liberal of lawyers know that.
Basically, the abortion side cheated. They needed a consitutional amendment to get a case like Roe to work, but they used phony arguments to get there.
As one who likes the Originalist point of view, it is often frustrating to hear of the “right to privacy” and “right to abortion”. As Scalia often puts it, he looks at an abortion case…well, the constitution says nothing about abortion, so convince your fellow citizens one way or another and pass a law. But don’t cheat by using the constitution when it is silent on the issue.
One of the best arguments for Scalia’s interpretation of the law is when he sites the 14th amendement vs the 19th (women’s suffrage). He notes that right after the 14th amendment was passed, today’s court would have given the women’s vote without the 19th amendment, because some lawyer would have argued that the right to vote is so key to our society it would be a violation of equal protection. When clearly, after the 14th amendment was passed, nobody thought it would have the broad sweeping power it does now. If it did, why did they go through the process of drafting the 19th amendment? Because the intent of the amendments when they were drafted democratically is key.
Nice disucussion on this point, have enjoyed it.
I am willing to bet real money that the central holding of Roe/Casey will remain intact for at least 25 years. How long did it take to overturn Plessy v. Ferguson? And overturning it caused major upheaval for the courts and led to a political realignment that lost the Democrats control of the South. The Republicans have no interest in having something similar to them when all the socially liberal Republicans (you can name them as well as I can) leave the party for fear that the Republicans really are going to take society back to the 1950s. We may see some erosion of the Roe/Casey holding around the edges – e.g. upholding stricter notification laws, a ban on certain late term abortions, and the like. But abortion-on-demand in the first trimester (which is the overwhelming majority of all abortions) is going to remain protected by SCOTUS until society in general rejects the sexual revolution, and that just isn’t going to happen. I hope I lose my bet, but I’m quite confident that I won’t.
Shortly after Infant Holocaust Extermination became law, protests in many cities would exceed 25,000 on pro life Sunday.
Often Saturday morning protests would attract 200 at Infant Holocaust Extermination sites.
But the people came to accept Infant Holocaut exterminations, and protest numbers dropped.
Today there are at most two Justices who might , might vote to overturn.
The chances this is overturned are in line with a nationwide ban on gambling.
Personhood was defined at the common law as beginning at birth. For anyone interested in this debate, go to the First Things website and do a search, there was a good debate between Judge Robert Bork and another scholar on this point in one of their back issues.